Buying a property is a major decision. Apart from considering the location, number of bedrooms and other appealing features of a property, one should pay careful attention to the terms of the Offer to Purchase which once accepted by the seller constitutes a concluded sale agreement. Ideally the agreement should protect both the seller’s as well as the purchaser’s interests but one often finds a few clauses that may appear to be standard terms and conditions yet have a drastic impact on the agreement. A party to an agreement may choose to strike through a clause that does not meet his satisfaction.
It is an implied term of an agreement that a property is sold free from patent and latent defects.
Whilst patent defects are detectable from a cursory inspection, latent defects are not visible despite a careful inspection of the property. Latent defects have the potential to destroy or impair the usefulness of the property. Structural defects, dampness and leaking roofs (provided the leak is not visible at the time of entering into the agreement) are just some examples of latent defects.
The insertion of a voetstoots clause renders the sale of the property “as is” and protects the seller from claims for any such defects. There are, however, exceptions that allow the purchaser to still cancel the sale agreement or sue the seller for a reduction in the selling price. These exceptions include instances where the property had the defect at the time of the sale and the seller deliberately concealed the defect as he or she knew that if it was not concealed and the purchaser saw it, the purchaser might not have purchased it, or the purchaser would have negotiated a lower purchase price; or where the seller made a fraudulent or innocent material misrepresentation. To prevent disputes from arising sellers should therefore make full disclosure by listing all known defects in the agreement. Likewise, it will be prudent for purchasers to acquaint themselves with any restrictive conditions in the Title Deed, view the building plans for the property and have a professional home inspection conducted before signing the Offer to Purchase. These enquiries will provide the Purchaser with insight into the property, help determine the value of the property and what other expenses may still have to be incurred to remedy any defects, thereby guiding the decision to purchase (or not) and at what price.
